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Determination: Imposing Conditions and Restrictions on the Cuban Interests Section and Its Personnel with Respect to Acquisition and Disposition of Motor Vehicles in the United States

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Summary

The United States Interests Section of the Embassy of Switzerland in Havana, Cuba (“the U.S. Interests Section”) is the mission through which the U.S. communicates with the Government and people of Cuba. The Cuban Government's counterpart mission in the United States is the Cuban Interests Section of the Embassy of Switzerland in Washington. For some time, the Cuban Government has imposed a series of impediments, obstructions, denials of service, and unjustifiable costs upon the functioning of the U.S. Interests Section and living conditions of the Interests Section's employees and dependents. The Foreign Missions Act of 1982 as amended (22 U.S. Code 4301, et. seq.) provides the domestic legal authority for responding to these restrictions by imposing reciprocal measures such as those set out in this Determination.

Among the many areas in which Cuban authorities impose undue restrictions on the U.S. Interests Section and its personnel is that of motor vehicles. Specifically, Cuban authorities impose a variety of restrictions and impediments which have the net effect of making it inordinately difficult, if not altogether impossible to either purchase a new vehicle or resell a used one in Cuba.

To enable the U.S. Government to respond effectively to the situation described above, as well as to create for the Government of Cuba an incentive to improve the conditions it imposes upon the U.S. Interests Section, the Department of State is hereby invoking its authorities under the Foreign Missions Act to impose a series of reciprocal terms and conditions on the Cuban Interests Section in Washington, DC with respect to motor vehicles. The primary effect of these terms and conditions, which are spelled out in the text below, is to restrict the ability of the Cuban Interests Section and its personnel to purchase, lease, or sell any vehicle in the United States.

It should be noted that, upon publication of this Determination in the Federal Register, or upon actual notice to any party, whichever is the earlier, it will be unlawful for any person or business subject to the jurisdiction of the United States to act in a manner contrary to the terms and conditions specified below.

Persons Affected by This Action

This Determination applies primarily to the Cuban Interests Section of the Embassy of Switzerland in Washington, DC, its personnel, and the family members thereof. However, it also applies to any person subject to the jurisdiction of the United States, whether natural person, business, or other entity of any sort, that intends to sell or lease a motor vehicle to, or purchase a motor vehicle from the Cuban Interests Section or its personnel.

Legal Authority

The terms and conditions promulgated by this Determination are done so pursuant to the Foreign Missions Act of 1982, as amended, 22 U.S.C. 4301 et seq. (“the Act”). The Act at section 4304 authorizes the Secretary to provide “benefits” to foreign missions in the United States and to impose certain terms and conditions upon the provision of such benefits, if such action is reasonably necessary to achieve a statutory purpose identified in the act, including the interests of diplomatic reciprocity. The term “benefits” is defined in the Act at section 4302 to include any of a number of specifically enumerated goods and services, as well as “any other benefits as the Secretary may designate.” 22 U.S.C. 4302(a)(1).

Pursuant to Department of State Delegation of Authority No. 214, section 14 (September 20, 1994), the authorities that the Act vests in the Secretary of State were delegated by the Secretary to the Assistant Secretary of State for Diplomatic Security, who also functions as Director of the Office of Foreign Missions.

Designation of Benefits, Findings, and Specific Determinations

Pursuant to the authority vested in me by and through the above-cited provisions of law and Designation of Authority, I hereby find and determine as follows:

(1) Definitions: Pursuant to the authorities contained in the Act, including the discretion contained at 22 U.S.C. 4302(b) to determine the meaning and applicability of the terms used in section 4301(a), I hereby determine that, for the purposes of this Determination, the following definitions shall apply:

(a) “Cuban Interests Section” shall mean the Cuban Interests Section of the Embassy of Switzerland in Washington, DC, including its personnel, and any dependent of such personnel, forming part of the household thereof;

(b) “motor vehicle” shall mean any motorized device intended for the purpose of transporting individuals on public streets and highways;

(c) U.S. person shall mean any natural or corporate person or entity physically present within the United States, regardless of nationality or immigration status, except for accredited members of foreign diplomatic or consular missions in the United States, and their accredited dependents forming parts of their households, provided that the foregoing exclusion shall not apply to any employee of such a foreign mission, or any dependent thereof, who is a U.S. citizen, permanent resident alien, or a person regarded as permanently resident” in the U.S., pursuant to the policies of the Department of State in implementing the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations;

(d) “acquisition” shall mean the transfer by any U.S. person whatsoever to the Cuban Interests Section of any interest in a motor vehicle, by any method or means including, but not limited, to purchase, lease, loan, gift, hypothecation, or devise; and

(e) “disposition” shall mean the transfer by the Cuban Interests Section to any U.S. person whatsoever of any interest in a motor vehicle by any method or means including, but not limited to, sale, lease, loan, gift, hypothecation, or devise, including sale for scrap or salvage.

(2) Designation of Benefits: Pursuant to 22 U.S.C. 4302(a)(1), which authorizes the Secretary, or his Start Printed Page 51061delegatee, to designate as a “benefit” under the Act any additional good or service beyond those enumerated in section 4302(a)(1)(A)-(G), I hereby designate as a benefit the privilege of disposing of a motor vehicle to a U.S. person within the United States. This designation of a benefit shall, as of this date, apply to all diplomatic and consular missions accredited to the United States. It is noted that the acquisition of a motor vehicle is already encompassed within the statutory designation of a “benefit”, pursuant to the existing definitions in 22 U.S.C. 4301(a)(1)(C), “transportation”.

(3) Based upon the facts and circumstances set forth in the Summary section above, I hereby find that with respect to the acquisition and disposition of motor vehicles, the Cuban Interests Section in Washington, its personnel, and their dependents enjoy significantly more favorable treatment than do the U.S. Interests Section in Havana, its personnel, and their dependents.

(4) I further find that, in the area of motor vehicles, the Cuban Government's treatment of the U.S. Interests Section in Havana, its personnel, and their dependents imposes additional undue and unjustifiable costs on the operation of the United States Interests Section in Havana; that it creates a source of dispute in relations between the United States and Cuba; and that the persistence of such an imbalance in the treatment of United States and Cuban diplomatic personnel in each other's state is contrary to the interests of the United States.

(5) Determination To Deny Benefits: In light of the findings discussed in Sections 3 and 4 above and pursuant to the statutory requirements and purposes of the Act, I hereby determine that imposition of the following terms and conditions on the acquisition and disposition of motor vehicles by or on behalf of the Cuban Interests Section in Washington is necessary on the basis of reciprocity:

(a) Acquisitions of Vehicles: The Cuban Interests Section shall be denied the benefit of acquiring any motor vehicle in the United States, subject only to the following exceptions:

(i) The rental of a vehicle from an established auto rental business, for a period not to exceed thirty (30) days;

(ii) The direct, duty-free importation of a vehicle from a vendor located outside the United States, utilizing the services of a manufacturer's authorized dealer, provided that such vehicle is less than four years old from date of manufacture and complies fully with all applicable Federal safety requirements. In order to be eligible for this exclusion, the acquisition may not be made from any pre-existing dealer stock, and the ownership and importation documentation must clearly indicate the Cuban Interests Section as the consignee/transferee of said vehicle;

(iii) The duty-free importation into the United States from abroad by the Cuban Interests Section of any motor vehicle, the pre-existing ownership of which was already in the hands of the Government of Cuba, any employee thereof, or any dependent of such employee forming part of the employee's household, provided that such vehicle is less than four years old from date of manufacture and complies fully with all applicable Federal safety requirements;

(iv) The continued ownership by the Cuban Interests Section of any vehicles that are owned as of the effective date hereof;

(v) The continued retention and use, until and not beyond the expiration of the lease term, of any motor vehicle leased by the Cuban Interests Section as of the effective date hereof;

(vi) The purchase by the Cuban Interests Section of a motor vehicle from any accredited diplomatic or consular mission in the United States, or any accredited member of such a mission, or accredited dependent thereof, enjoying privileges and immunities in the United States pursuant to international law, provided that such transaction shall constitute a bona fide arms-length purchase not entered into for purposes of collusion or evasion of the general prohibition on vehicle acquisitions being imposed by this Determination. For purposes of ascertaining the bona fide nature of any such acquisition, it shall be presumed that the acquisition of any vehicle which was registered in the name of a foreign mission or accredited member or dependent thereof for longer than 120 days satisfies the requirements of a bona fide acquisition. The present exclusion, however, shall not apply to the purchase of vehicles currently leased by the Cuban Interests Section, its members, or their dependents.

(vii) The acquisition of any motor vehicle by and through the Department of State's Office of Foreign Missions.

(b) Dispositions of Vehicles: The Cuban Interests Section shall likewise be denied the benefit of disposing of any motor vehicle in the United States, subject only to the following exceptions:

(i) The return of any rental vehicle to the auto rental entity concerned;

(ii) The return of any prior leased vehicle to the dealership concerned;

(iii) The sale of any vehicle to any diplomatic or consular mission to the United States, any accredited member thereof, or any accredited dependent forming part of the household of such member, provided that such member or dependent is not a “U.S. person” as defined in Section 1(C), above; and

(iv) The sale of any vehicle by and through the Department of State's Office of Foreign Missions.

(c) No Restriction on Exports or Imports of Vehicles: Nothing in this Determination shall in any way operate to limit or restrict the right of the Cuban Interests Section, its personnel, and dependents thereof to import or export motor vehicles for mission or personal use from or to sources outside the United States.

(6) Waiver of Recourse: Pursuant to the Act at section 4304(d) and the Delegation of Authority thereunder, I hereby find and determine that, for the purposes of implementing the present restrictions on motor vehicle benefits, it is reasonably necessary in order to achieve the purposes set forth in the Act at § 4304, to require that the acceptance and use of all motor vehicle license tags issued by the Office of Foreign Missions to the Cuban Interests Section be conditioned, consistent with U.S. international obligations, as follows:

(a) The Cuban Interests Section, shall waive any recourse that the Interests Section, its agents or assigns may have in U.S. courts or administrative tribunals against any person or party with respect to any past, present, or future motor-vehicle-related transaction, whether such transaction is contracted for or has actually been concluded.

(b) Pursuant to the Act at 22 U.S.C. 4304(d) of the Act, I hereby designate the Deputy Director of the Office of Foreign Missions to be the agent for the Cuban Interests Section for purposes of effectuating such a waiver of recourse.

(c) The requirement for such waiver of recourse shall constitute a condition both as regards the continued use of license tags previously issued to the Cuban Interests Section as well as the acceptance and use of license tags in the future.

(7) Enforcement: Pursuant to the Act at 22 U.S.C. 4311, provision to the Cuban Interests Section of any motor vehicle-related benefit contrary to the terms and conditions set forth above shall be unlawful. The United States is authorized to bring legal action to obtain compliance with the aforementioned terms and conditions.

(8) Date of Effect: The provisions of this Determination shall take effect upon the earlier of (a) its publication in Start Printed Page 51062the Federal Register; or (b) actual notice to any party or person affected hereby.

(9) Publication of this Determination in the Federal Register constitutes notice to persons subject to the jurisdiction of the United States that terms and conditions on the acquisition and disposition of vehicles by the Cuban Interests Section are hereby imposed. Compliance with such terms and conditions are required by the Act. Persons wishing clarification as to the applicability of this Determination may contact the Office of Foreign Missions, U.S. Department of State, Washington, DC 20520; or by telephone: (202) 647-4554.

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Dated: August 8, 2003.

Francis X. Taylor,

Assistant Secretary of State for Diplomatic Security and Director, Office of Foreign Missions, Department of State.

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[FR Doc. 03-21677 Filed 8-22-03; 8:45 am]

BILLING CODE 4710-43-P